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Issue #1761      December 14, 2016


The fight to come

The Australian Building and Construction Commission and Registered Organisations Acts are only the first steps in the Coalition government’s union-busting agenda. Employment Minister Michaelia Cash told employers at a recent conference of mining executives that the government was committed to implementing the recommendations of the Heydon Royal Commission and Productivity Commission’s (PC) review of the industrial relations system.

The government also plans to extend a number provisions of the ABCC Act to cover all trade unions and workers, in particular the restrictions on the right to take “protected action.”

The outlawing of pickets will apply to all industries, not just building and construction.

Section 51(2)9a of the Competition and Consumer Act (CCA) broadly exempts industrial relations matters from prohibitions on anti-competitive practices. However some sections of the Act – sections 45D, 45DA, 45DB, 45E, 45EA and 48 – do apply. These sections prohibit secondary boycotts; anti-competitive contracts, arrangements or understandings in the supply or purchase of goods and services; and resale price maintenance.

Secondary boycotts affect third parties that are not directly involved in a dispute, such suppliers not being able to deliver goods due to a picket or disadvantaging a third party in favour of another. For example, an enterprise agreement restricting which contractors can be used.

The Heydon Royal Commission recommended that the government should grant Fair Work Building and Construction (now the ABCC) shared jurisdiction with the Australian Competition and Consumer Commission to investigate and enforce the secondary boycott prohibitions of the Competition and Consumer Act in the building and construction industry.

At present the maximum penalty is $750,000 for unions under the secondary boycott provisions.

Heydon also recommended that the maximum penalty be raised to $10 million, in line with breaches of other parts of Section 45 that affect corporations. This was something that the Australian Competition and Consumer Commission had previously recommended and the government has publicly agreed to.

The employer bodies are clambering for the penalties to be raised to $10 million, their mouths watering at the prospect of unions being clobbered with a $10 million fine for a picket or other form of secondary boycott. That is in addition to the millions more they go for after suing the unions for damages.

The Productivity Commission’s recommendations include:

  • restricting enterprise agreements to a limited number of permitted matters
  • matters relating to relations between employers and trade unions not permitted – eg the requirement that an employer consult the union about rosters or change, trade union training in occupational health and safety, holding of union meetings, etc
  • replacing the Better Off Overall Test (BOOT) compared with the award with a No Disadvantage Test (NDT) compared with the award for enterprise agreements
  • a new type of enterprise contract (EC) that would allow businesses the flexibility to vary an award or awards for a class of employees (as nominated by the employer) to suit their business operations. This could be offered to new employees as a condition of employment and so be used to undermine an existing EBA. They would sign on individually. Employers would not be required to seek approval for their EC from the Fair Work Commission, but lodge a template with the Fair Work Ombudsman.

The PC recommended that cuts to penalty rates be left to the “independent umpire” – the Fair Work Commission. The FWC is currently carrying out a review of penalty rates in the retail and hospitality sectors.

It also paid attention to the individual flexibility arrangements (IFAs) within enterprise agreements, which it said were under-utilised. “To create more opportunities for using IFAs that meet the genuine needs of employees and employers, the matters covered by the model flexibility term should be included in all EAs as the minimum matters over which flexibility is permitted,” the Productivity Commission said.

This is spin for individual contracts along similar lines to the Howard government’s Australian Workplace Agreements.

One thing that the unions can be sure of is that nothing fair will be coming out of the Malcolm Turnbull/Michaelia Cash agenda to screw trade unions on behalf of big business’ increasing profits.

Next article – CPA New Year’s greeting

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